S. 91 CrPC | Accused Can Seek Production Of Document Withheld By Investigator During Charge Framing If It Is Found To Be Of Sterling Quality: J&K HC

A bench of Justice Sanjeev Kumar had said,

“An application under Section 91 CrPC at the instance of the accused would lie even at the stage of framing of charge if the accused makes out a case that there is a document or material of sterling quality lying with the I.O, but has not been submitted to the Court along with the charge-sheet and such document or material is necessary and desirable for the purposes of framing of charge”.

Background of the Case:

Petitioner Amit Kumar faced charges under the Narcotic Drugs and Psychotropic Substances Act (NDPS Act) for allegedly possessing charas. He contested the entire case, claiming it was fabricated by the Anti-Narcotics Task Force (ANTF) team. Kumar asserted his innocence, stating he was a businessman dealing in apples and travelling back from Kashmir when ANTF officials stopped him.

To prove his alibi, Kumar filed an application before the trial court seeking production of Call Detail Records (CDRs) of his and his co-accused's mobile phones, CCTV footage from a toll plaza, and receipts for toll tax payments. He argued that these documents were essential to demonstrate his movements on the day of the alleged arrest.

The trial court, however, rejected Kumar's application. It reasoned that, at the framing stage, the court considers only the prosecution's material presented in the challan and the accused generally cannot use Section 91 to introduce defense evidence at this point.

Aggrieved by the trial court's order, Kumar approached the High Court.

Observations Of The Court:

Acknowledging the established principle that the court, at the framing stage, primarily considers the challan material Justice Kumar observed that the accused cannot typically invoke Section 91 to introduce defense evidence then.

However, Justice Kumar pointed out an exception and held that an accused can seek production of material under Section 91 CrPC during the framing of charges if they can establish that:

1. The document or material is of "sterling quality," meaning it has the potential to significantly impact the case.
2. The document was withheld by the investigating officer (IO) and not submitted with the challan.
3. The document is "necessary or desirable" for determining whether to frame charges.

The court emphasized that this exception is meant for rare situations where withheld evidence can demonstrably expose fabricated charges. It does not grant the accused a general right to introduce defence evidence at the framing stage, the bench underscored.

“It cannot be said to be an absolute proposition of law that under no circumstances can the Court look into the material produced by the defence at the time of framing of charge, though this should be done in very rare cases i.e where defence produces some material which is of sterling quality and convincingly demonstrate that the whole prosecution case is totally absurd or concocted”, the bench recorded.

In the instant case the court noted that the petitioner's grievance did not involve the non-production of relevant documents by the investigating officer (I.O) during the investigation or their absence from the charge sheet. Instead, the prosecution had already included the necessary Call Detail Records (CDRs) and other details in the final report submitted to the trial court.

Observing that the petitioner's intention was to present evidence to support their innocence at the stage of framing of charges, essentially attempting to initiate a defence prior to trial the court concluded that permitting such a course of action would effectively require the court to conduct a mini-trial during the framing of charges, which is not permissible under the law.

In light of these findings the bench dismissed the petition.

Case Title: Amit Kumar Vs UT of J&K

Citation: 2024 LiveLaw (JKL) 46

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